Fisher v. City Dairy Co.

Briscoe, J., delivered the opinion of the Court. This is a suit at law to recover damages for certain injuries to a Dodge touring car owned by the appellees, aud alleged to have been caused by the negligence of the appellant, in operating a Peerless touring car1, at the intersection of North Charles Street and Twenty-seventh Street, in the city of Baltimore. At the trial of the case, in the Superior Court of Baltimore City, the plaintiffs’ first, third, fourth, sixth, seventh and eighth prayers were granted, but their second and fifth were refused. All of the defendant’s prayers were granted, except the first and second and these were rejected. ⁶⁰² The only exception presented by the record is to the ruling ■of the court in granting the1 plaintiff’s eighth prayer, and in refusing the defendant’s first and second prayers, which were offered at the close of the plaintiffs’ case, and re-offerecl at the close of the testimony of the entire case.

The plaintiffs recovered a verdict of $116, and from the judgment, entered on the verdict, this appeal has been taken. The rules of law controlling and applicable in the trial of negligence cases have been so often stated and applied by this Court in recent cases, that it would seem to be unnecessary to discuss them on this record. The defendant’s first and second prayers were demurrers to the evidence and, upon the state of proof disclosed by the record, could not properly have been granted by the court. These prayers asked the court to instruct the jury that, under the pleadings!, there was no evidence legally sufficient to entitle the plaintiffs to recover and the verdict of the jury must be for the defendant.

The law of the case, it will be seen, was practically conceded at the trial by tire granted prayers, presented on the part of the plaintiffs and defendant. The negligence vel non of the defendant, and the contributory negligence of the plaintiffs, were clearly questions, properly for the consideration of a jury, upon the proof set out in the record, and the defendant’s first and second prayers were, therefore, properly refused by the court. The eighth prayer of the plaintiffs, however, upon the measure of damages, did not state the proper and correct rule in cases of this character and should not have been granted. By this prayer tire jury were told that the true measure of the plaintiffs’ damage in this case is the difference between the value of the plaintiffs’ automobile immediately preceding the accident complained of and its value immediately thereafter. ⁶⁰³ In the recent case of Wash., B. & A. Rwy.

Co. v. Fingles, 135 Md. 574 , this Court held that the measure of damages for injury to personal property, where the property has been damaged but not entirely destroyed, is the cost of repairing* the property, together with the value of the use of the property during* the time that it would take